Wednesday, November 11, 2009

Setoff Should Be Applied To Judgment If 57.105 Sanctions Also Imposed Upon Prevailing Party

In Nationwide Mutual Fire Ins. Co. v. Voigt (2D08-2186), the Second District reversed a judgment entered against Nationwide because the trial court did not offset the judgment with the amount of appellate attorneys fees awarded by the Second District to Nationwide in a prior appeal.  The court held "The sanction awards and the $50,000 judgment arise from one proceeding, and there is no reason that the sanction awards against Voigt should not be offset against the $50,000 judgment in her favor."

Prior decisions released by the Second District in this case can be found at Nationwide Mut. Fire Ins. Co. v. Voigt, 971 So. 2d 239 (Fla. 2d DCA 2008) and Voigt v. Nationwide Mut. Fire Ins. Co., 13 So. 3d 61 (Fla. 2d DCA 2009) (table decision).  In the first decison, Nationwide Mut. Fire Ins. Co. v. Voigt, 971 So. 2d 239 (Fla. 2d DCA 2008), the Second District sanctioned the insured for  convincing the trial court to enter a judgment in the amount of the jury verdict without regard for the policy limits.  In that decision, the Court held:
Likewise, Nationwide asks this court to impose attorneys' fees against Ms. Voigt and her counsel pursuant to section 57.105, Florida Statutes (2006). Nationwide served this motion on Ms. Voigt's counsel and provided the twenty-one-day notice required by section 57.105(4). Ms. Voigt's counsel took no action and continued to defend the erroneous judgment. We conclude that Ms. Voigt's counsel knew or should have known that his proposed final judgment was not supported by existing law when he presented it for entry to the trial court, and his defense of the amount of the final judgment in this appeal was without merit. We grant Nationwide's motion for appellate attorneys' fees pursuant to section 57.105 and remand for the trial court to determine the reasonable fees incurred by Nationwide in prosecuting this appeal as to that claim only.
In a footnote to its 2008 decision, the court stated:
We note that section 57.105 states that these fees must be paid in equal amounts by Ms. Voigt and her attorney and does not permit this court to impose a higher portion of the fees upon the attorney, even if it is obvious that the circumstances justifying the imposition of fees are matters exclusively attributable to the attorney. See Morton v. Heathcock, 913 So. 2d 662, 669 (Fla. 3d DCA 2005). On rehearing, to his credit, Ms. Voigt's attorney asked that all fees imposed as a sanction be imposed only against him. Nationwide did not object to this proposal. We are not convinced that we have the authority to order a sanction in contravention of the statute, but we see no reason why the parties cannot stipulate to that result on remand.


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